The Champion

December 2009 , Page 59

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Honest Services

By Kenneth M. Breen, Sean T. Haran

Supreme Court to Consider Honest Services Fraud

The Supreme Court will hear arguments this term in three important cases involving the federal “honest services fraud” statute, 18 U.S.C. § 1346.1 The review comes in the wake of a caustic dissenting opinion Justice Scalia wrote earlier this year, in which he criticized the Court’s refusal to hear arguments in another honest services fraud case, and amidst wide-ranging disagreements among the circuit courts as to the scope and elements of the statute.2

Justice Scalia has described the honest services fraud statute as being so overbroad, vague, and standardless as to “invite abuse” by “headline grabbing prosecutors” in pursuit of those who “engage in any manner of unappealing or ethically questionable conduct.”3 Circuit courts, for their part, have stated variously that the statute on its face is “vague and undefined” and provides “little guidance as to the conduct it prohibits.”4 Indeed, the “plain language of the statute suggests that an

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